Tagged: Election law

2010 State of the Union Address
2010 State of the Union Address

FAN 44 (First Amendment News) Citizens United: it was 5 years ago today — 13 First Amendment lawyers & scholars offer differing views

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” [President Obama] said of the Citizens United v. Federal Election Commission decision, which allowed corporations to donate to political candidates. Justice Samuel Alito then shook his head and whispered, “not true.” — Tessa Berenson, Time (2015)

On this day five years ago the Supreme Court, by a 5-4 vote, handed down its decision in Citizens United v. Federal Election Commission (transcripts here and here & audio file — argument and re-argumament —  here).

As you will see, the comments below span a wide rhetorical range. On the one hand, some view Citizens United as “one of the worst decisions in the history of the United States Supreme Court” (Geof Stone), while others argue that the Court in Citizens United “reaffirmed and applied core First Amendment principles” (Joel Gora). See below for the full spectrum of views.   

Speaking of money and speech, the Court now has before it a First Amendment challenge to a panhandling law — Thayer v. City of Worcester (distributed for Conference of Jan. 9, 2015).

Before proceeding to the comments, I thought it might be useful to provide a few hyperlinked historical facts about the case. 

The documentary that prompted the litigation

Hillary: The Movie

The Petitioner

The Lawyer for the Petitioner in the District Court

Three-Judge District Court per curiam opinion here

The Lawyers who argued the case in the Supreme Court 

  1. Theodore B. Olson (argued the cause for the Appellant)
  2. Floyd Abrams (on behalf of Senator Mitch McConnell, as amicus curiae, in support of the Appellant)
  3. Malcolm L. Stewart (Deputy S.G., Department of Justice, argued the cause for the Appellee)
  4. Elena Kagan (Solicitor General, Department of Justice, reargued the cause for the Appellee)
  5. Seth P. Waxman (on behalf of Senators John McCain et al. as amici curiae in support of the Appellee)

Five Years Later — Lawyers & Scholars Offer Comments 

Floyd Abrams: “Academics, it seems fair to say, are overwhelmingly critical of the Citizens United ruling. If they were irate about  Buckley v. Valeo (1976) — formerly their consensus choice as the worst Supreme Court ruling since Dred Scott (1856) — they are apoplectic about Citizens United.  At the core of the both rulings is the now familiar proposition first uttered by the Supreme Court in Buckley  and repeated with approval in Citizens United that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” If one accepts that notion, as I do, the ruling in Citizens United follows naturally and a documentary-like movie that castigated Hillary Clinton when she last sought the presidency must be protected by the First Amendment. If one does not, one naturally enough can join the four Citizens United dissenters in concluding that it is constitutional to impose criminal penalties for the airing of that film on television. For me, that was not a difficult choice five years ago and it is not one today.”

See here re brief filed by Mr. Abrams in Citizens United; see also his “Citizens United and Its Critics,” Yale L.J. Online (2010)

Mr. Jan W. Baran

Mr. Jan W. Baran

Jan W. Baran: “The Court was correct to protect political speech by all citizens and groups, including corporations and unions. Current so-called reform efforts, including proposals to amend the Constitution, prove that the First Amendment is all that stands between political freedom and government control of speech. Contrary to President Obama’s dire predictions, corporations are not distorting political debate and foreign money (which is illegal) has not flooded campaigns. It is the Obama re-election committee that became the first campaign to raise and spend $1 billion.  So much for campaign money distorting the system.”

 See here re brief filed by Mr. Baran in Citizens United.

Robert Corn-Revere: “Citizens United is like a political Rorschach Test. But when divorced from its many critics’ policy preferences, it is a pretty straightforward First Amendment case that concludes there are constitutional difficulties with making political speech a federal crime.  And, along the way, the Court reached a number of important (and usually overlooked) constitutional findings. One key conclusion is that “[w]e must decline to draw, and then redraw, constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker.” The Court observed that “[t]he Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.” This fundamental constitutional principle is increasingly important as we witness seismic changes in the global media environment. And it is just one of several important pillars of the case.”

Number of articles about Citizens United in the 27 months following the decision 

New York Times         1100

Washington Post        327

USA Today                  220

Wall Street Journal    195

 This count includes columns and opinion pieces but not blog posts.

 Source: Douglas Spencer & Abby Wood, Indiana L. J. (2014)

Allen Dickerson: “Citizens United has become a symbol onto which politicians and commentators project their own hopes, agendas, and insecurities. But cutting through the rhetoric, the case asked a simple question: on what principled basis could the government ban a nonprofit’s documentary while permitting corporate newspaper endorsements? The Court, correctly, said ‘none.’ Nevertheless, legislatures and regulators continue to draw distinctions between different types of speech, and different types of speakers, and the result is a level of bureaucratic complexity average Americans cannot hope to navigate. Five years after Citizens United showed us our error, burdened by a national debate that yields more heat than light, we continue to avoid the difficult task of reforming that troubling approach to political engagement.”

Professor Joel Gora

Professor Joel Gora

Joel Gora: “The Supreme Court’s Citizens United decision was a landmark of political freedom. By striking down government bans on political speech by labor unions, corporations and non-profit organizations, the Court reaffirmed and applied core First Amendment principles. These include the concepts that protecting political speech against government censorship is at the core of the First Amendment’s mission, that the government cannot be empowered to decide which people or groups can speak about government and politics, what they can say, or how much they can say, and that democracy requires as much information as possible from diverse and antagonistic sources.”

“Embodying these principles, the Citizens United decision has had a number of salutary consequences. It has provided doctrinal support for further easing of campaign finance limits on political speech and association.  Second, the rejection of such limits has turned attention properly to more positive efforts to address our admitted campaign finance system difficulties. Finally, although the predicted tsunami of corporate spending “drowning our democracy” never materialized, the Court’s decision has helped spark an increase in overall political funding which has helped make our elections more competitive and the electorate better informed. All in all, I submit, a good day’s work for political freedom and democracy.”

 See here re brief coauthored by Professor Gora in Citizens United.

Richard Hasen: “After five years, it has become clear that Citizens United is only part of the problem. If the Court reversed it tomorrow (something I am not expecting), we would still have Super PACs funded by very wealthy individuals, loads of undisclosed money coming through 501(c)(4)’s and other organizations, and an increased ability for those with economic power to transform it into political power. It is time to rethink first principles — which is my current book project. Stay tuned.”

→ See Professor Hasen’s Legislation, Statutory Interpretation, and Election Law (ch. 13, 2014) re his comments on Citizens United

Forthcoming Book

Elizabeth Price Foley, Defending Citizens United: How Campaign Finance Laws Restrict Free Speech (Praeger, Oct. 31, 2015)

Alan Morrison: “The fight with the Court over Citizens United should not be over whether corporations have rights to make political expenditures, but whether the Court’s ruling in Buckley v. Valeo (1976) that there can be no limits on independent expenditures and that there are no constitutional or other values that can even be considered in assessing that ruling. Here are some examples.  The pre-Buckley decision in United States v. O’Brien (1968), recognized that the right to political protest could be overcome by the Government’s interest in enforcing its selective service laws. In Burson v. Freeman (1992), the Court upheld a law prohibiting the core political activities of soliciting votes and distributing of campaign materials within 100 feet of a polling place.  And cases like Ward v. Rock Against Racism (1989), would surely support an ordinance that banned sound trucks from blaring at more than 100 decibels at midnight.  Post Citizens United, the Court summarily upheld the law that bans all contributions and independent expenditures solely because the plaintiffs were neither U.S. citizens nor permanent resident aliens.  Bluman v. FEC (2012). (See also here.)”

 See here re brief coauthored by Mr. Morrison in Citizens United.

Professor Tamara Piety

Professor Tamara Piety

Tamara Piety: “Citizens United legitimated the notion that corporations (and capital) are embattled, “disfavored” speakers entitled to the special solicitude of the courts’ counter-majoritarian power, as if they were a discrete and insular minority which lacked access to the political process, rather than a force that is very nearly constituent of it. It relies on an implied (and specious) syllogism: if discrimination against people is bad, and corporations are people, then “discriminating” between corporations and natural persons, or between types of corporations, is likewise bad. This reasoning animates Hobby Lobby (2014) and is echoed in Sorrell v. IMS Health (2011), with “marketing” standing in for “corporation” and “speech” for “people.” This line of argument has destabilized much corporate and regulatory law.  For its proponents, Citizens United has been fabulously successful; but that success has come at some political cost. Citizens United has tarnished the Court’s public image. It seems likely that the decision will be cut back, but how and from which direction is difficult to predict.”

→ See Professor Piety’s Brandishing the First Amendment (2012) re her comments on Citizens United

Ilya Shapiro: “Citizens United is one of the most misunderstood high-profile cases ever and it’s both more and less important than you might think. It’s more important because it revealed the unworkability of our current system of campaign regulation. It’s less important because it doesn’t stand for half of what many people say it does. By removing limits on independent associational speech—spending on political advertising by people unconnected to candidates and parties—it weakened the government’s control of who can speak, how much, and on what subject. That’s a good thing. After all, people don’t lose their rights when they get together, whether it be in unions, non-profit advocacy groups, private clubs, for-profit enterprises, or any other form.”

 See here re brief coauthored by Mr. Shapiro in Citizens United; see also his op-ed “Citizens United Misunderstood, USA Today, Jan. 20, 2015

Professor Geoffrey Stone

Professor Geoffrey Stone

Geoffrey Stone: “Citizens United may well turn out to be one of the worst decisions in the history of the United States Supreme Court. As Oliver Wendell Holmes recognized almost a century ago, the American political system depends upon the reasonable functioning of the “marketplace of ideas.” It has always been clear that that “marketplace” is imperfect. But until now, it was generally able to reflect the views of the majority of the American people. With its decision in Citizens United, the Supreme Court has unleashed forces that seriously threaten to corrupt and distort that “marketplace” in ways that stand the First Amendment on its head and endanger the future of American democracy.”

See Professor Stone’s article “Citizens United & Conservative Judicial Activism,” U. Ill. L. Rev. (2012)

Nadine Strossen: “From President Obama,  in his  State of the Union Address the following week, to major media outlets, the vast majority of Citizens United’s critics misstate its holdings. Almost never mentioned are the crucial facts that it protects the rights of non-profit corporations and unions to spend their own money on their own messages; too often asserted is the falsehood that it permits wealthy for-profit corporations (or anyone, for that matter) to make unlimited contributions to candidates’ campaigns.”

See here re Professor Strossen’s comments on Citizens United

Fred Wertheimer: “The ideologically driven Citizens United decision has left the nation’s campaign finance and political system in shambles. It is one of the worst Supreme Court decisions ever made. The Court ignored the country’s history, its own jurisprudence and the need to protect America’s system of representative government against corruption – a need recognized by the Founding Fathers. Citizens United will not stand the test of time. It will end up in the dustbin of history.”

 See here re brief coauthored by Mr. Wertheimer in Citizens United.

Larry Tribe on Citizens United

Forthcoming: The working title is “Dividing Citizens United: The Case v. The Controversy.” The piece will appear in Constitutional Commentary.

Adam Winkler: “Citizens United is one of the most controversial Supreme Court decisions in a generation. Yet the decision is widely misunderstood by the public. From Occupy Wall Street to the White House, Citizens United has inspired critics who insist that corporations are not people. Yet the Supreme Court did not rely on corporate personhood in Citizens United. Justice Anthony Kennedy’s majority opinion never refers to corporations as people and nothing in the reasoning of the opinion turns on personhood. Justice Kennedy instead insists corporations are “associations of citizens” whose rights derive from the natural people who make up the firm. This is a problematic formulation that hides the corporation and allows the Court to avoid asking hard questions about what rights corporations as such should have. Justice Kennedy’s approach equates a business corporation with a voluntary membership organization like the NAACP, both equally entitled to assert the rights of its members.”

“Corporations are people under corporate law. That was their original purpose. And corporations must have some constitutional rights, such as the right to property and due process. Yet they shouldn’t have all the same rights as people, such as the right to vote or hold office. Constitutional doctrine would be improved if instead of hiding the corporation, we recognized that corporations are indeed people — and then asked which rights these corporate people ought to have.”

See here re Professor Winkler’s “Three Misconceptions in Citizens United


Event: Citizens United v. FEC after Five Years Read More


FAN 43.1 (First Amendment News) Two Upcoming Events on First Amendment & Elections

This week there will be two events in Washington, D.C. concerning elections and the First Amendment. One is on the Williams-Yule judicial elections case, and the other is on the Citizens United case.

Speaking of Citizens United, my FAN post for this Wednesday will be devoted to the case, this on the occasion of its fifth anniversary. Among other things, the post will contain comments on the case from noted First Amendment scholars and lawyers.  

Heritage to host event on judicial campaign solicitation case

Tomorrow the Heritage Foundation in Washington, D.C. will host an event titled “Judicial Elections and the First Amendment — Williams-Yulee v. The Florida Bar.” (The Williams-Yulee case will be argued tomorrow.)

The event will feature:

Hans A. von Spakovsky,  a Senior Legal Fellow at Heritage, will host and moderate the event.

Here is a description of the upcoming event:

On January 20, the U.S. Supreme Court will be hearing oral arguments in Lanell Williams-Yulee v. The Florida Bar. At issue is whether a ban on solicitation of campaign donations by judicial candidates in state elections in Florida violates the First Amendment rights of the candidates. Does Florida have a compelling interest in imposing such a ban to preserve the appearance of impartiality of its judges? Is it necessary to ensure judicial independence and maintain public confidence in the judicial system? Does this ban on solicitation violate the First Amendment rights of candidates to engage in political speech and political activity? Does the soliciting of campaign donations involve core political speech? In a post-argument briefing, two First Amendment experts who filed amicus briefs in the case, along with the former Chief Justice of the Indiana Supreme Court, will discuss these issues as well as the oral arguments conducted that morning before the Supreme Court. Moderating the panel will be a former FEC commissioner.

→ For more information, go here.


Event: Citizens United v. FEC after Five Years

This coming Wednesday the Center for Competitive Politics is sponsoring a conference on Citizens United.

LocationCato Institute


9:00 AM: The Story Behind the Lawsuit

  • Michael Boos, General Counsel, Citizens United
Interviewer: TBA

9:20 AM: The Impact on Parties in the age of Citizens United: Are changes needed?

  • Joel Gora, Professor of Law, Brooklyn Law School
  • Neil Reiff, Founding partner, Sandler Reiff Lamb Rosenstein & Birkenstock, P.C.
  • Peter J. Wallison, Arthur F. Burns Fellow, American Enterprise Institute

10:20 AM: Should liberals support Citizens United?

 Stuart Taylor, Jr.Author, freelance writer and a Brookings Institution nonresident senior fellow

  • Ira Glasser, former Executive Director, ACLU
  • Gabe Rottman, legislative counsel, ACLU
  • Wendy Kaminer, Author, lawyer, social critic and contributing editor of The Atlantic

11:20 AM: Beyond Citizens United: the future of campaign finance jurisprudence

  • Bobby R. Burchfield, Partner, McDermott Will & Emery LLP
  • Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
  • Bradley A. Smith, Chairman and Founder, Center for Competitive Politics, Judge John T. Copenhaver Visiting Endowed Chair of Law at the West Virginia University, former FEC Chairman
  • Matea GoldThe Washington Post

The Complete Posner on Posner Series

The Posner on Posner series began on November 24, 2014 and ended with the Afterword on January 5, 2015. Below is a hyperlinked list of all the posts.

 Table of Contents

  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part I
  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness
  1. The Man Behind the Robes — A Q & A with Richard Posner
  1. The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist
  1. On Legal Education & Legal Scholarship — More questions for Judge Posner
  1. On Free Expression & the First Amendment — More questions for Judge Posner
  1. On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others
  1. On Judicial Reputation: More questions for Judge Posner
  1. Posner on Same-Sex Marriage – Then & Now
  1. Posner on Case Workloads & Making Judges Work Harder
  1. The Promethean Posner – An Interview with the Judge’s Biographer
  1. Afterword: Posner at 75 – “It’s My Job”

→ Forthcoming: Richard Posner (Oxford University Press, Spring, 2015) by William Domnarski.


On Free Expression & the First Amendment — More Questions for Judge Posner

 The American concept of freedom of speech poses a challenge to the pragmatist because, like ‘democracy,’ it is the repository of a great deal of unpragmatic rhetoric. It is at the heart of the American ‘civil religion,’ a term well chosen to convey the moralistic fervor in which free speech is celebrated. — Richard Posner (2003)

This is the sixth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, and the fifth one here.  

Here, as elsewhere, controversy is never far from the conceptual corner where Richard Posner lingers. Merely consider, for example, the following point he made in a 2001 article: “political free speech is not an unalloyed blessing.” Or consider his take on the most famous line from NYT v. Sullivan — he tags it (see below) “empty rhetoric.” Or think about his views on privacy and the First Amendment (see Glenn Greenwald’s criticisms below). Such comments are sure to raise skeptical eyebrows among the rah-rah First Amendment crowd.

Then again, that crowd happily hails the Judge for the robust defense of free speech he displayed in NAACP v. Button (1963), which he takes credit for authoring while he was a law clerk to Justice William Brennan. And then there are his opinions in cases such  American Amusement Machine Association v. Kendrick, the violent video game case. For staunch conservatives, such as Justice Clarence Thomas, protection of such expression “does not comport with the original public understanding of the First Amendment.” No matter, Posner paves his own path, sans any Hugo Black-like passion in defense of free speech or any Clarence Thomas-like zeal in defense of originalism.  

Of course, there is more to be said about Posner’s pragmatic approach to our free speech jurisprudence, and on that score some will approve and others not. In the tumble of it all, he remains a Maverick, which is how he likes it.  

Some of the Judge’s more notable writings on free expression can be found in the following works:

  1. Economic Analysis of Law (9th ed. 2014) (chapter 29)
  2. Not a Suicide Pact: The Constitution in a Time of a National Emergency (2009) (chapter 5)
  3. Law, Pragmatism and Democracy (2003) (chapter 10)
  4. Frontiers of Legal Theory (2001) (chapter 2)
  5. The Speech Market and the Legacy of Schenck,” in Lee Bollinger & Geoffrey Stone, eds., Eternally Vigilant: Free Speech in the Modern Era 121 (2002)
  6. Pragmatism versus Purposivism in First Amendment Analysis,” 54 Stanford Law Review 737 (2002)
  7. Free Speech in an Economic Perspective,” 20 Suffolk University Law Review 1 (1986)

For a sampling of his First Amendment opinions, go here and search “First Amendment.”

Below are some questions, on the topic of free expression and the First Amendment, that I posed to the Judge followed by his replies. (Note: Some links will only open in Firefox or Chrome.)

NB: A segment of this post, quoting a well-known journalist, has been temporarily omitted because of a strong objection. I will explain why in this Monday’s post.      

Question: Is speech overprotected by our courts and in our culture?

Posner: I think so. The most notorious example is expenditures on political advertising — Citizens United and its sequels.

Question: Though the Pentagon Papers Case (1971) is much celebrated in First Amendment circles, you seem to think that the Court might have gone too far. Two questions:

  1. What is your criticism of the case?
  2. Does over classification of national security information raise a a First Amendment issue?


  1. I don’t think there is a right to read classified material. National security classification is one of many sensible exceptions to freedom of speech, along with threats, trade secrets, defamation, distribution of child pornography, lawful wiretapping and other lawful searches for communicative material, copyright infringement, and much else.
  2. It could, if there were no security justification.

Question: The so-called “war on terrorism” is unlike the Great Wars in that the enemy is ever changing and even hard to identify and the duration of the conflict is indeterminate. How does this affect the calculus of free speech “in wartime”?

Posner: I don’t see why the nature of the military conflict should make a difference.

Question: You have written that “some restrictions on speech actually promote speech.” That general idea seems to be getting some traction among egalitarian-minded liberal scholars dissatisfied with certain tenets of current free speech doctrine. Can you say more about your thinking here, especially as it might apply to the liberal defense of speech restrictions?

Posner: An obvious example is copyright protection, which restricts speech (the speech of copiers) but promotes speech overall by granting legal protection to original speech. Another obvious example is restricting the number of speakers in a political debate so that the debate won’t degenerate into an unintelligible babble of interruptions. Similarly one doesn’t want to allow the use of threats to silence people. A subtle example is the censorship of the Elizabethan theatre, which may well have promoted creativity by forcing playwrights like Shakespeare to situate contemporary problems in exotic times and places, in order to get by the censor.

Question: You pride yourself on being a “balancer,” as one who compares the social pluses and minuses of restrictions on free speech. Can you be an effective balancer absent a reliable record of the actual or even conjectural harms and benefits of speech? And what if the lawyers, as if often the case, tender no reliable empirical evidence one way or the other? Who wins, where is the conceptual default? Or must the reviewing court do its own research to resolve the question?

Posner: I don’t know how much empirical work has been done on the subject. In its absence, there is just guesswork, although the basic structure of American free speech law seems okay. Some of it strikes me as silly, notably granting rights of free speech to school kids.

[RKLC: 12-12-14: See William Baude’s commentary here.]

Question: Whatever its shortcomings, one of the benefits of a category-based approach to free speech (combined with certain tailoring tools, e.g., overbreath, etc.), is judicial efficiency. The rules are not unworkably open-ended and subjective, and are therefore relatively manageable for judges and lawyers alike.

  1. Mindful of that, how judicially efficient is your economic-based approach with its assorted variables? – e.g., taking into account and balancing the relevant benefits (B), harms (H), offensiveness (O), probability (P), the number of years between when speech occurs and when the harm is likely to materialize, and the administrative costs of a regulation (A).
  2. What about lawmakers, the focus of the First Amendment (Congress shall make no law . . . )? How likely are they to engage in such sophisticated cost-benefit analysis? Is your proposed approach a realistic test for them to employ in considering the constitutionality of proposed laws affecting speech?


  1. One can hardly exclude offensiveness, other harms, probability of harm, remoteness of harm, etc. from consideration, any more than you can do that in an ordinary tort case.
  2. Do lawmakers ever do sophisticated cost-benefit analysis?

Question: In cases such as Holder v. Humanitarian Law Project (2010), is the purported harm so great as to preclude any meaningful balancing? It was precisely that concern that prompted Justice Stephen Breyer to complain in dissent: “I believe the Court has failed to examine the Government’s justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion.”

How would you weigh in on this? By your standards, was Holder a case of failed balancing?

Judge Learned Hand

Judge Learned Hand

Posner: I haven’t read the case.

Question: You have expressed some conceptual approval of Judge Learned Hand’s opinion in United States v. Dennis (1950) in which he upheld the convictions of eleven Communist Party leaders for violating the Smith Act. Do you agree with the judgment in that case? Please say a few words about why you agree or disagree with the Dennis judgment.

Posner: Hand’s formula in Dennis is I think fine—it is a variant of the famous Hand negligence formula from his opinion in Carroll Towing. The Communist Party leaders were essentially agents of the Soviet Union, so I don’t see why their speech should be thought privileged by the First Amendment.

Question: Don’t phrases like “clear and present danger” (which, by the way, was used by the attorney Benjamin W. Shaw in 1918) invite, as Paul Freund suggested in 1949, a kind of mantra-like application devoid of the kind of realist and pragmatic balancing you endorse?

Posner:  It’s a dumb phrase. A murky remote danger could be very great.

Question: Based on what you know in light of the book you edited on Holmes, did he get the judgments right in Schenck, Frohwerk and Debs?

Posner: Probably not in Schenck or Debs; I don’t recall Frohwerk.

Question: “Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . .”

Do you consider those lines from New York Times Co. v. Sullivan (1964) to be “unpragmatic rhetoric”?

Posner: Empty rhetoric.

 Question: The Rehnquist and Roberts Courts have said relatively little about textualism when it comes to free speech and press issues. Why do you suppose that is?

Posner: There is no text. “Freedom of speech” is a heading, not a test.

Chief Justice John Roberts

Chief Justice John Roberts

Question: The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First Amendment jurisprudence of the current Court?

Posner: Very nice for fat cats and enemies of abortion.

Question: You have long been on record as being a critic of the Court’s decision in Buckley v. Valeo (1976). You maintain that the “American system of campaign financing is extremely porous and is widely and probably correctly believed to constitute a thinly disguised system of quasi-bribes of elected officials; at the very least it tilts the playing field very steeply toward the wealthy and the well organized . . . .” Given that, how bad in your view have things become in light of rulings such as McCutcheon v. FEC (2014)?

Posner: Very bad.

Question: Do you favor some kind of constitutional amendment to remedy the problems you have identified

Posner: [The idea of a constitutional amendment is] a waste of time.

Posner on Roberts

Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated Chief Justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. [Source here]

Question: In his dissent in McCutcheon v. FEC (2014), Justice Breyer declared: “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” What is you view on this idea “collective speech” and the First Amendment?

Posner: A little high-falutin’ for my taste. I would just say that large corporations and wealthy people shouldn’t be allowed to buy elections.

Question: Despite your criticisms of Buckley and its progeny, you have also expressed serious doubts about campaign finance reform proposals. Please explain why you think such efforts are problematic.

Posner: Have I? I don’t recall

Question: In Frontiers of Legal Theory you wrote: “Individuals or groups that have more money than the average amount of money have always had more than the average ability to spend money on trying to influence public opinion. We do not consider such inequality a compelling reason for limiting free speech.” Do you still believe that?

Posner: The mere fact of inequality is not critical. And it would be very difficult for a new candidate to get launched without access to substantial donors. The problems are the concealment of the identity of big donors, the implicit quid pro quo (donor is buying influence, and donee who is not influenced is unlikely to obtain substantial future donations), and the failure to place some ceiling on the amount of donations that a particular individual should be free to make. And I doubt that companies as distinct from individuals should be permitted to make campaign contributions.

Question: As you know, the speech in question in Citizens United involved a political documentary titled Hillary: The Movie. A conservative non-profit group sought to air it within 30 days of the primary. During oral arguments in the case, the question was asked: “What if the particular movie involved here had not been distributed by Video on Demand? Suppose that people could view it for free on Netflix over the Internet? Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form.”

 How would you answer that question? Is it your position that showing that political documentary and/or publishing a book on it during an election is not protected speech under the First Amendment?

Posner: The question is the scope of protection. I don’t think the First Amendment should be interpreted to prevent government from limiting the amount of broadcasting (or equivalent, like movies) in the last few weeks before a national election.

Question: What is your view of the secondary effects doctrine as it has been applied by the Court and lower courts since its use in Renton v. Playtime Theatres, Inc. (1986) and then again in Barnes v. Glen Theatre (1991), which overruled an opinion that you authored. In 1988, your former boss, Justice William Brennan, warned that the doctrine “could set the court on a road that will lead to the evisceration of First Amendment freedoms.” Do you agree? Where do you stand on this matter?

Posner: I don’t think there’s anything wrong with it if it is supported by real evidence, though I think it was misapplied in the Barnes case because there wasn’t any evidence that nude dancing promotes crime to any significant extent.

The next installment, the seventh, in the Posner on Posner series was scheduled to be “On Judicial Reputation.” It will now be preceded by a special post on free speech and privacy.  


RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).


FAN 37 (First Amendment News) McCutcheon case produces flood of scholarly commentary — 41 works!

UPDATED: 10-24-14

Before proceeding to the scholarly output on McCutcheon, here is where we stand this Term on First Amendment free expression cases:

Review Granted

  1. Elonis v. United States (to be argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar
  3. Reed v. Town of Gilbert

Review Pending

  1. Pregnancy Care Center of New York v. City of New York 
  2. Vermont Right to Life Committee, et al v. Sorrell
  3. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission

Review Denied

  1. City of Indianapolis, Indiana v. Annex Books, Inc.
  2. Ashley Furniture Industries, Inc. v. United States 
  3. Mehanna v. United States 

* * * *

Erin Murphy arguing in McCutcheon case

Erin Murphy arguing in McCutcheon case

The decision in McCutcheon v. Federal Election Commission (2014) is barley six months old and it has already produced an abundance of scholarly commentary, including books, symposia, and articles — no fewer than 40 such works. And all of this before the revered Harvard Law Review issue dedicated to the last Supreme Court term finds its way to print. Ditto for the equally acclaimed Supreme Court Review. How times have changed. The days of waiting are over; we live in a wired era. That’s the good news. The bad news, of course, is: who can possibly begin to read all of this?

That said, and for better or worse, below is a list of books (e-books and print ones) and articles and essays (in online companions and print journals) that either discuss McCutcheon in full or in part (e.g. Zephyr Teachout’s book) or issues very much related to the decision (e.g, Robert Post’s book). All were published after the decision came down on April 2, 2014. Browse them and see how many catch your eye.

5 Books

36 Scholarly Articles or Blog Posts  Read More


FAN 36.1 (First Amendment News) Skover to Speak on McCutcheon Case

By way of a shameless plug for my coauthor:


David Skover

David Skover

Seattle University School of Law
is proud to present
Professor David Skover

SCOTUS Books-in-Brief: When Money Speaks: A New Venture in E-Publishing

Wednesday, October 29
Room C6, Sullivan Hall, 4:30 p.m.
Reception to follow

The event is open to all, but RSVPs are requested.

Professor Skover will speak about the creation of the SCOTUS Books-in-Brief imprint and his latest coauthored book, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.

When Money Speaks analyzes the controversial U.S. Supreme Court decision in McCutcheon v. FEC, which struck aggregate limits on contributions to political candidates. It has been called “a brilliant discussion of campaign finance in America” and “the best book on the topic.”

The SCOTUS Books-in-Brief series provides readers with reliable, informative, and engaging narrative accounts of significant Supreme Court rulings shortly after they come down.

Introduction by Dean Annette E. Clark 



FAN 34 (First Amendment News) Hybrid PACS — yet another case goes to High Court

I am posting this column a few days early since I will be traveling this week, but next week I’ll return to the scheduled Wednesday postings.

* * * *

Contributions earmarked solely for use in independent expenditures by “hybrid” political committees that engage in both independent expenditures and direct contributions to candidates appears destined to be a coming campaign-finance law battleground. — Judge Edith Brown Clement (2014)

Dan Backer

Dan Backer

The cases seem endless — that is, all those campaign cases that are finding their way to courts. One gets dizzy just drying to keep up with all of them as they are listed weekly on Professor Rick Hasen’s Election Law blog.

Recall, last week I posted a story about a campaign finance case that James Bopp, Jr. filed with the Supreme Court on Friday. Before the digital ink on that case could dry, voila, a new campaign finance case found its way to the Court only moments ago.

The case: Stop This Insanity Inc Employee Leadership Fund et al v FEC.  

The two issues in the case are: (1) Whether a political committee that makes highly restricted direct contributions has a First Amendment right to engage in unrestricted non-contribution activities through a separate and segregated non-contribution account, and (2) Whether the First Amendment forbids a government from restricting political speech based on the disclosure interest—an interest in providing the electorate with information about the sources of election-related spending—including when a more narrowly tailored remedy is available.

→ The man principally behind the case is a mild-mannered and quiet sort of guy, Dan Backer. He is no big time K street lawyer. No, his professional credentials are much more modest. He is the founder and principal attorney for DB Capitol Strategies, a campaign finance and political law firm in Alexandria Virginia. More importantly (and as David Skover and I noted in our book When Money Speaks), he was one of the driving forces behind the successful litigation of McCutcheon v. FEC (2014). When his team lost that case in the D.C. Circuit (in an opinion by Judge Janice Rogers Brown), it did not stop him — he took the case to the Supreme Court where Erin Murphy successfully argued the case for the Petitioner.

And now, Backer and a new team are at it again, in yet another campaign finance case — and again challenging a ruling by Judge Brown and her colleagues on the D.C. Circuit.

Lower Court ruling — “‘You can’t always get what you want'” 

→ Court of Appeals decision (D.C. Cir., Aug, 5, 2014), per Judge Janice Rogers Brown (joined by Judges Thomas Griffith and David Sentelle). Here is how Judge Brown began her opinion:

“The iconic musician Mick Jagger famously mused, ‘You can’t always get what you want. But if you try sometimes, well, you just might find, you get what you need.’ The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). Here, Stop This Insanity Inc. (STII)—a grassroots organization—wants to remove the congressionally-imposed binds on solicitation by separate segregated funds, a type of political action committee connected to a parent corporation. What it needs, however, it already has—an unrestrained vehicle, in the form of that parent corporation, which can engage in unlimited political spending. Because this less-obsolete and less-onerous alternative exists, we decline Stop This Insanity’s invitation for us to tinker with what has become a statutory artifact.”

And here is how she ended it, albeit with musical flare:

“STII is already capable of sweeping solicitation. And yet, it wants a vehicle capable of soliciting without transparency. The Court has endorsed disclosure as “a particularly effective means of arming the voting public with information,” McCutcheon, 134 S. Ct. at 1460, and the Appellants’ approach would stifle the Government’s ability to achieve that endeavor. Our Constitution does not compel such a result.IIIWe may never know why the Appellants wish to do things the hard way. The Constitution, however, does not guarantee a right to be obstinate. Try as it might, STII will get no satisfaction.”

Tillman Breckenridge

Tillman Breckenridge

The players

 Counsel of record on Cert. PetitionTillman J. Breckenridge.

 Other Counsel in the Case: The petition was filed by Tillman Breckenridge and Tara Brennan of the Reed Smith law firm, working in conjunction with the William & Mary Law School Appellate and Supreme Court Clinic, and Dan Backer.

→ Counsel for the FEC in Court of Appeals: Erin Chlopak, Acting Assistant General Counsel, Federal Election Commission.

The initial advisory opinion request to the FEC and court filing were done by Steven Hoersting and Dan Backer.

Circuit Split

In his cert. petition, Mr. Breckenridge maintains that “the D.C. and Second Circuits directly conflict with the Fifth and Tenth Circuits on whether hybrid PACs can be prohibited.” The cases to which he refers are:

  1. Stop This Insanity Inc Employee Leadership Fund et al v FEC (D.C. Cir., 2014)
  2. Vermont Right to Life Comm., Inc. v. Sorrell (2nd Cir., 2014)
  3. Catholic Leadership Coal. of Tex. v. Reisman (5th Cir., 2014)
  4. Republican Party of N.M. v. King (10th Cir., 2013)

 → Will such differences in the Circuits be enough to prompt four of the Justices to review the enmeshment issue and/or the discourse one? Here is Professor Rick Hasen’s prediction: “I give this a reasonable chance of a cert. grant, given the circuit split (though not on the disclosure issues, but on the coordination/enmeshment issue.”

On a related matter: Federal judge rules donor disclosure required for political documentary

This from the JURIST website (Sept. 23, 2014):

The US District Court for the District of Colorado denied on Monday a request by Citizens United for a preliminary injunction to allow the conservative organization to air a political documentary without disclosing the film’s advertising donors as required by state law. The documentary, Rocky Mountain Heist, which the group hopes to air before November’s elections, “concerns various Colorado advocacy groups and their impact on Colorado government and public policy.” Citizens United argued, on First Amendment grounds, that its organization should be considered a “press entity,” entitled to the same exemptions as traditional media outlets, which are not required to disclose their donors. Otherwise, the group argued, it would be the victim of “viewpoint-based discrimination.” The court disagreed stating that people should be able to “discern the private interests behind speech when determining how much weight to afford it.” Citizens United intends [press release] to appeal this ruling to the US Court of Appeals for the Tenth Circuit.

Supreme Court: Results of Sept. 29th Conference Read More


FAN 33 (First Amendment News) What is a PAC? The next big issue?

This is the hottest issue in campaign finance litigation right now. James Bopp, Jr. 

James Bopp

James Bopp

What is the next big campaign finance class of cases, the ones most likely to go the Supreme Court? Ask different people and you will get pretty much the same answers, ranging from “soft money” cases to certain kinds of campaign disclosure cases to campaign speech and judicial elections cases to certain kinds of contributions made by for-profit and non-profit corporations cases, among others.

James Bopp, a noted campaign finance lawyer, has his own views on the matter. Here is the issue that he thinks will get considerably more judicial attention in the near future: “whether an issue advocacy group, that does some political speech, can be deemed to be a Political Action Committee even though it is not under the control of a candidate and it’s major purpose is not the election or nomination of candidates.” Moreover, he stressed that this “is an important issue since deeming a group to be a PAC vitiates the right to political speech that groups won in Citizens United, since no issue advocacy group wants to suffer PAC burdens to do a small amount of political speech.”

Circuit split

Most recently, this issue was examined by a three-judge panel of the Second Circuit in a case familiarly named Vermont Right to Life Committee, et al v. Sorrell (June 28, 2014). The opinion was written by Judge Christopher Droney and joined in by Judges Richard Wesley and Vincent Briccetti. The case for the Petitioners was argued by Randy Elf (with James Bopp, Jr., on the brief).

In a variety of challenges to Vermont’s campaign laws, the Court rejected the Petitioners’ argument that the state’s PAC disclosure requirements violate the First Amendment because Vermont may only impose a disclosure regime on an organization if “the major purpose” of the organization is to advance a candidacy.” Here is Judge Droney’s reply to that argument:

Prior to Citizens United, the Fourth Circuit held that an organization could only be subjected to a political committee regulatory regime if the organization met “the major purpose” test. N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 288‐89, 295 (4th Cir. 2008) (“NCRL III”). However, since Citizens United and its approval of extensive disclosure regimes, two Circuits have concluded that the major purpose test is not a constitutional requirement. See Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 490 (7th Cir. 2012) (“[T]he line‐drawing concerns that led the [Supreme] Court to adopt the major purpose limitation for contribution expenditure limits in Buckley do not control our overbreadth analysis of the disclosure requirements . . . .”).  Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 59 (1st Cir. 2011) (“We find no reason to believe that this so called ‘major purpose’ test, like the other narrowing constructions adopted in Buckley, is anything more than an artifact of the Court’s construction of a federal statute.”); see also Human Life of Wash., Inc.  v. Brumsickle, 624 F.3d 990, at 1009‐11 (9th Cir., 2010) (concluding that Buckley did not lay down a bright‐line test requiring that the major purpose of an organization must be to support or oppose a candidate, and that a state law regulating organizations with a major purpose of engaging in such actions was constitutional).

We join the Circuits that have considered PAC definitions in this context after Citizens United and hold that the Constitution does not require disclosure regulatory statutes to be limited to groups having “the major purpose” of nominating or electing a candidate.

 Counsel for Respondent: Eve R. Jacobs‐Carnahan (Megan J. Shafritz, on the brief), Assistant Attorneys General for the State of Vermont.

Amicus briefs in support of the Respondent were filed by J. Gerald Hebert, the Campaign Legal Center and Democracy 21.

 Additionally, George Jepsen, Attorney General for the State of Connecticut and Maura Murphy Osborne, Assistant Attorney General for the State of Connecticut, filed an amicus brief for the States of Connecticut, New York, Hawaii, Iowa, Kentucky, Minnesota, Montana, New1 Mexico, and Washington, all joined in support of the Respondent.

The next move: “Several cases raising this issue,” says Bopp, “will be filed with the Supreme Court, including one this Friday contesting the decision of the Second Circuit in Vermont Right to Life v Sorrell.”

→ See also below re C-SPAN link on Heritage event (Sept., 18) on campaign finance law and the First Amendment (with Floyd Abrams, Ronald Collins, Adam Liptak, Erin Murphy, and James Swanson).

New Litigation

Challenge to bans on controversial subway ads  Read More


31.1 (First Amendment News) Proposed amendment to 1st Amendment fails — A brief history of it all

We must preserve our Bill of Rights including our rights to free speech. We must not allow officials to diminish and ration that right. We must not let this proposal become the supreme law of the land. — Senator Chuck Grassley, Sept. 10, 2014

Text of First Amendment on stone tablet facing Pennsylvania Avenue -- the Newseum, Washington, D.C.

Text of First Amendment on stone tablet facing Pennsylvania Avenue — the Newseum

It’s over now, the campaign to amend the First Amendment. The Democratic-led effort died in the Senate yesterday by a vote of 54-42. Thankfully, the constitutional theatrics have ended and the 1791 text remains safe, at least from any Article V threat by lawmakers.

Not surprisingly, reports Burgess Everett writing in Politico, “Senate Republicans unanimously rejected a constitutional amendment sought by Democrats that would allow Congress to regulate campaign finance reform. . . . The failure of the proposal followed a surprising result on Monday, when the measure advanced past an initial filibuster despite broad GOP opposition to the measure.”

“Grassley and two dozen other Senate Republicans voted to advance the bill,” added Everett, “to blunt Democrats’ plans to hold a second round of campaign-flavored Democratic votes on proposals aimed at raising the minimum wage, overturning the Hobby Lobby Supreme Court decision, chipping away at gender pay disparities and reforming the student loan system.”

After the vote, Senate Majority Harry Reid (D-Nev.) said: “Today, Senate Republicans clearly showed that they would rather sideline hardworking families in order to protect the Koch brothers and other radical interests that are working to fix our elections and buy our democracy.” Senator Chuck Grassley (R-Iowa) had a quite different view: “The proposed amendment would restrict the most important speech the First Amendment protects, core political speech. It’s hard to imagine what would be more radical than the Congress passing a constitutional amendment to overturn a dozen Supreme Court decisions that have protected individual rights. Free speech would be dramatically curtailed.” (See also text of Senator Grassley’s floor statement.)

Looking back: Justice Stevens takes the stage 

The constitutional campaign movement got a big boost last April when Justice John Paul Stevens proposed an amendment to the First Amendment. Remember, he did so in his book Six Amendments: How and Why We Should Change the ConstitutionHis proposed amendment provided:

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

On April 30, 2014, Justice Stevens testified before a Senate Rules Committee at which he read a statement in defense of his proposed amendment.

Looking back:  The Leahy hearing  Read More